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Becoming a contracts professional


The comments on ‘The Role of a Contract Manager’ continue to grow and recently Ben Edwards made the following observation:

What I’d like to see more of if the professional recognition and development of Contractor side Contract Managers who receive little or no focus. When large contracts are issued, the contractor must have a ‘general manager’ that knows how to deliver to the contract terms etc. This skill set is greatly undervalued and client side Contract Managers would do well to ensure large contracts have this leader in place.”

 

I agree with Ben’s comment and this belief underpins much of what we do at IACCM. But those who aspire to this professional status must recognize that it depends on their readiness to behave as professionals. In other words, like all other high status disciplines, we need to operate in accordance with an established and consistent body of knowledge; we need some form of certification to confirm our credentials; and we must visibly espouse a commitment to continuous improvement.

 

The problem I see is that only a minority of practitioners have truly accepted that need and therefore those who should be leaders of a new generation of professionals are in fact setting no example and showing no commitment to raising the bar and training others to follow in their footsteps. As a result, the status of all suffers. 

 

In other words, too often we want recognition, but are not willing to take the steps needed to deserve or achieve it.

On a more optimistic note, a growing number of individuals are undertaking certification with IACCM and many employers are pushing for these credentials. However, the volume of activity tends to be at Associate and Practitioner levels and the more senior staff often stand aloof from the process of professionalization.

Change does not have to be complicated


Sometimes it can be so simple to achieve change.

Last week, I was talking with John, an IACCM member, about contract drafting and its impact on business results. We started also to discuss contract structure and its effect on ease of use – and at that point he came up with an interesting story.

John’s company undertakes a variety of complex services. He explained that the definitions section of their agreements is typically quite long and was regularly taking up to one and a half days to negotiate. This cut into the time available on the more substantive areas of the contract and regularly resulted in important issues being rushed.

Then, someone suggested moving the definitions to an appendix at the back of the agreement, rather than as part of the introduction. And sure enough, it worked. By the time the parties reached ‘Definitions’, they were already comfortable with the substance of the agreement and had a shared context for the definitions. So effort was saved and substantive issues were resolved.

Some of the most effective changes are also the simplest. Its just a matter of watching out for examples of inefficiency or ineffectiveness and then trying to identify a different approach. Contracts are especially in need of some innovative challenges.

The right to protest … but at what cost?


The quality and integrity of procurement is a big subject for many organizations right now. They are struggling to strike a balance between a rigid, savings-focused process, versus the need to have managers who use discretion and make good judgments.

Nowhere is this dilemma more pronounced than in Government. Public procurement rules mandate standards of fairness and objectivity that enshrine the right for protest – and the fear of protest often drives the use of narrow assessment criteria that result in a loss of possible value and, on occasion, the selection of the wrong supplier.

Just how prevalent are protests and to what extent do they have merit? I met last week with Nate Nash, CEO at GovTribe, Inc. Nate and his team collect data and provide analysis – offering some great insights to the world of public procurement. A recent report covered the subject of protests against US Federal contract awards.

Overall, I was surprised to see how few complaints are actually made. Most are in the defense sector. But perhaps even more surprising is the extent to which a few companies seem to monopolize the process – there are some serial protesters. Their success rate is generally not high. In fact, only one company stands out as having a significant rate of sustainment and that is Alvedra, a small, minority owned business providing food and medical supplies. Otherwise, less than 2% of protests are successful. Indeed, in some cases it may be they are driven more by ill-will than merit. It is worth remembering that in the US, anyone can protest an award; it is not limited to unsuccessful bidders.

Beyond the obvious costs of investigation, the impact of protest on the average citizen is potentially significant. Not only does a protest delay contract performance, but of far more importance is the effect it has on overall contract and procurement standards. The fear of protest has contributed to a narrow focus on process and avoiding criteria for supplier selection that might be challenged. This often results in the absence of qualitative criteria and consequent loss of discretion or judgment. Hence it is quite possible that the performance or capability of the winning supplier may leave much to be desired.

It is right that there is openness and transparency in the use of public money; but does this current right of protest serve us well? It appears to have a cost that outweighs its value. Surely the process of audit should be sufficient to monitor the integrity of public sector acquisition.

 

Did Procurement institutionalize the wrong things?


Purchasing was a largely administrative discipline that ensured orders were placed and goods were received. In the last 30 years, it has changed its name, matured, specialized and become inextricably linked with the concept of ‘savings’.

At the beginning, that journey made perfect sense. Fragmented buying authority meant that there was little control over prices paid or sources of supply. The opportunities to consolidate and to root out inappropriate – even corrupt – relationships were obvious. But once control was established, the on-going ability to eke out continued ‘savings’ becomes rather more debatable. Certainly there are some opportunities – for example, through innovation or revised procedures, even sometimes through dramatic new sources of supply.

But it may be that institutionalized procurement based on negotiated savings is actually costing money because it is now focused on the wrong thing.

In indirect procurement (the acquisition of services, solutions) and major capital projects, the evidence increasingly points to the fact that organizations often end up buying or commissioning the wrong thing. The negotiation is a battle over the wrong costs and the wrong terms. ‘Savings’ in this case are more a measure of reduced waste than true value.

And then we move to the post-award phase, where control and performance management frequently move back to the business unit or project team. This is when negotiated savings are often eroded or disappear. Many factors contribute – poor control over invoicing or deliveries, weak change procedures, failure to adequately test, missed opportunities for alternative or lower cost supply etc.

Some organizations have grasped the need to build ownership and quality into the entire make-or-buy acquisition process, but many have not. They have instead institutionalized Procurement around a rigid process designed to deliver theoretical savings, which actually far too often ends up costing the business money. It is time to break free from this trap and to focus activity on optimizing the right requirements and ensuring the right outputs and outcomes.

 

Legal work beats being a fast-food cook


When it comes to job meaning, satisfaction and stress, it seems there are many better choices than working as a lawyer or contracts professional. In fact, mail clerks feel as good about the value they deliver and there are some 300 job groups that yield greater satisfaction. The statistics suggest that being a Funeral Director is about twice as good as being a lawyer.

Job meaning, according to Payscale.com, is directly related to the extent to which a job is felt to ‘make the world a better place’. It is therefore not surprising that the roles occupying the top spots are typically linked to social and human benefit – healthcare, education, social service. Business activities feature far less well. For example, being a Chief Executive comes in at number 105 on the list, out of 454. In terms of ‘meaning’, it scores 74%, in terms of satisfaction it achieves 89% and stress level is 81%.

Obviously, satisfaction is not always related to salary level. The Clergy come top of the list, earning only about 12% of the wages of the third-placed surgeon. Clearly a sense of purpose and mission is key to the overall sense of job meaning and professionalism alone does not appear to be enough. Hence lawyers and accountants are well down in the list. Procurement managers fare slightly better that either of these roles, with statistics of 43% for meaning, 63% for satisfaction and 60% for stress.

Beyond a general sense of interest, is there anything we should take from these statistics? I think they illustrate the importance of leadership and that to have a motivated and enthusiastic workforce we must instill a sense of mission and purpose. Beyond that, we must also generate meaningful measures of contribution – not some vague or meaningless numbers, but actually related to human benefit. That is perhaps why we need to feel ownership of a process and to link the results from that process to social progress. And for those engaged in contracting, I believe that is possible. Trade lies at the root of social progress; without trade, we would not have the wealth needed to deliver all those healthcare, education and social services. Contracts – and their successful delivery – underpin prosperity.  So we should recognize that our job has tremendous potential for social meaning; now we just have to work harder at developing the skills, methods and knowledge to ensure the way we work actually translates to the benefits that can be achieved.

Next year, perhaps we can have climbed up that ladder of job meaning – and in the meantime, we can at least be grateful that we are not the bottom-placed fast-food cooks!

 

So you think you are good at contracting …


For thousands of years, humans believed that their fate lay in the hands of the gods. Health, justice, social position – all were determined by the will of whatever deity they happened to espouse.

Yet steadily, individuals started to question this fatalistic view of life. Initially, the fields of law and medicine were seen as closely linked to religion, as were other areas of expertise such as architecture or engineering. But over time these developed as distinct branches of study and practice, setting the framework for professionalism.

Professionals ask questions because they believe in continuous improvement. They build knowledge; they challenge accepted wisdom; they reject ignorance. So when it comes to expertise in contract and commercial management, how well are we doing? There are many questions we can pose, but I selected these six for a presentation at the recent IACCM Europe conference because they reflect recent conversations with senior managers and politicians.

  • What percentage of our contracts under-perform – and why?
  • What is the economic impact of different contract models or terms?
  • What are the relative probabilities of the risks we seek to mitigate through our contracts?
  • To what extent can high failure rates in major projects be reduced through improved contracting practices?
  • What are the best models for performance-based contracts?
  • How does contracting performance at your organization compare with competitors?

One response to these questions is to say that the answer lies in the hands of the gods. Another, more common, is to say that it is someone else’s responsibility (and therefore, by implication, suggest that contract and commercial management are simply short-term administrative tasks, generated by the errors or ignorance of others). A growing number – and I put myself among these – are determined to find answers, publish them and build the body of knowledge that elevates the discipline of contract and commercial management.

So how well do you score on the questions above; and what would you add to the list of things that we should know?

If they don’t seem friendly, they probably aren’t friendly


The concept of more collaborative relationships is certainly not new. Throughout my career, I have encountered many initiatives to agree a more balanced approach. Sometimes these are under the cover of an alliance or a partnership, or some other fine words that imply we are truly in this together.

And then the majority of those collaborative ventures fail. In many cases, they produce precisely zero benefit to either party.

So today, when I see all the collaborative models on display, I must admit to a certain skepticism. I don’t believe most of them will work. A few will – and these represent the anecdotes that keep the myth alive.

What is wrong? Quite simply, it is very hard for the leopard to change its spots. If an organization does not have collaboration in its DNA, it cannot sustain repetitive partnering. The underlying culture of adversarialism, lack of trust, protection of interests will generally dominate behavior. As the title says, if your counter-party has no history of being friendly, don’t think you are going to be the exception. Look elsewhere for that collaborative relationship.

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